Austin Carr, “Reddit Co-Founder, The Band’s Ex-Tour Manager Debate SOPA, Anti-Piracy and Levon Helm’s Legacy,” Fast Company, April 19, 2012, www.fastcompany.com/1834779/reddit-cofounder-bands-ex-tour-manager-debate-sopa-antipiracy-and-levon-helms-legacy-video.
Kurt Andersen, “You Say You Want a Devolution?” Vanity Fair, January 2012.
Chapter Six: Monopoly in the Digital Age
Much of the research on Robert Bork came from an interview with former secretary of labor Robert Reich, who was both a student and a research assistant to Bork in the 1970s.
Robert Bork, Antitrust Paradox (New York: Basic Books, 1978).
Barry Lynn, Cornered: The New Monopoly Capitalism and the Economics of Destruction (New York: John Wiley and Sons, 2010).
Lee Epstein, William Landes, and Richard Posner, “How Business Fares in the Supreme Court,” University of Minnesota Law Review, vol. 97, no. 1, www.minnesotalawreview.org/articles/volume-97-lead-piece-business-fares-supreme-court/.

…

Time Warner’s is $61 billion. The balance of power in the world of entertainment has shifted to monopoly platforms. To understand how that happened, we need to look at the nature of monopoly capitalism and how an old and largely discredited form of robber-baron capitalism took on a new form in the digital age.
CHAPTER SIX
Monopoly in the Digital Age
Competition is for losers.
—Peter Thiel
1.
Robert Bork did more than any individual in the twentieth century to embed the libertarian free-market principles of Ayn Rand and Milton Friedman into the heart of the American economic and judicial system. Professor Bork’s class on antitrust law at Yale Law School was usually packed. In 1971, he had taught Bill Clinton and his soon-to-be wife, Hillary, as well as Robert Reich, Clarence Thomas, and Richard Blumenthal.

…

As the New York Times noted in his obituary, this stance cost him a seat on the Supreme Court: “He also wrote a fateful article for The New Republic in 1963—one that played a key role in his 1987 confirmation defeat—condemning the public accommodation sections of the proposed 1964 Civil Rights Act aimed at integrating restaurants, hotels and other businesses. Mr. Bork said he had no objection to racial integration but feared that government coercion of private behavior threatened freedom.”
Google, Amazon, and Facebook are all monopolies that would be prosecuted under antitrust statutes if it hadn’t been for Robert Bork. From the Ford administration all the way through to the Obama White House, Bork’s principles as expressed in The Antitrust Paradox, encouraging mergers and calling for less regulation, have ruled the antitrust division of the Justice Department. Just a few years after Bork published his book, Reagan’s soon to be appointed head of the antitrust division, William Baxter, told the New York Times that he would “pursue an antitrust policy based on efficiency considerations.”

Reagan had already elevated William Rehnquist
to Chief Justice, and appointed Sandra Day O’Connor and Antonin Scalia to the
high court. Powell was a ‘‘swing vote,’’ often casting the deciding vote in 5-to-4
104
THE AMERICA THAT REAGAN BUILT
decisions.1 To tip the balance of power in favor of the conservatives, Reagan
nominated Robert Bork, a District of Columbia federal appeals judge known for
his articulate and outspoken convictions. If confirmed, Bork would be the nation’s 104th Supreme Court justice and a reliable vote for strict interpretation.
The nomination set the stage for one of the biggest political battles of the decade.
Robert Bork was born in 1927; he earned a law degree at the University of
Chicago, and subsequently taught at Yale Law School. There he became one of
the best-known conservative jurists in the country, opposing abortion and gay
rights while favoring the death penalty.

…

Yet in his testimony,
the judge said equal protection should apply to women.6 As he tried to moderate
some of his positions to be acceptable to Democrats in Congress, Judge Bork
alienated his supporters and further infuriated his detractors. All parties acknowledged that Robert Bork was one of the most astute legal scholars in the
country; the American Bar Association gave him its highest rating, ‘‘exceptionally well-qualified.’’ But the credentials did not endear him to the Senate
majority.
After weeks of testimony, the Judiciary Committee voted 9 to 5 against confirming Bork. Most observers expected the judge to withdraw after the vote, but
Bork decided to soldier on. Though he was disappointed in his wavering support
in Congress and at the White House, Judge Bork thought that a crucial principle
A Thousand Points of Light
105
of judicial independence from politics was at stake. On October 23, 1987, the
Senate voted 58 to 42 against the nomination of Robert Bork to the U.S. Supreme Court.7
The day after Bork’s repudiation by the Senate, President Reagan vowed,
‘‘My next nominee for the court will share Judge Bork’s belief in judicial
restraint.’’8 That nominee, Douglas H.

…

Since that time, he had
been ambassador to the United Nations, chairman of the Republican National
Committee, chief liaison of the U.S. Office in China, director of the Central
Intelligence Agency, and as vice-president, heir apparent to the Reagan legacy.
The hauteur of Democratic questions to Robert Bork was familiar to him. In the
entire time he had been in Washington, the Democratic Party was dominant in
the U.S. Congress, and Republicans succeeded only when they compromised
and cooperated with the majority. Bush’s tenure as chairman of the Republican
National Committee coincided with the Watergate scandal, and he was faced
with the unenviable task of rebuilding morale in the dispirited party after the
scandal.
The same month Robert Bork was rejected, George Bush made his announcement to run for president. As a high school band played ‘‘The Yellow Rose of
Texas’’ at the Hyatt Regency Hotel in Houston, the candidate took the podium to
declare that he had no plans to go off in ‘‘radical new directions.’’

A 1985 Roper poll showed that large numbers of Americans thought yuppies were "overly concerned with themselves," a view that reflected a wider public discomfort with how the new individualism was evolving.15 But these sentiments had little traction in larger cultural debates. One reason was that no serious counterweight existed to the juggernaut of '80s materialism. Liberals were too busy worrying about Star Wars, the Contras, and Reagan Supreme Court nominee Robert Bork to attack the money culture. Also, somewhere along the line liberals had lost their ability to talk about values and their skills for moral storytelling. They spoke instead about "issues" and "constituencies." Among other things, this abdication allowed the right to successfully attack some parts of the new individualism while allowing other parts to flourish.
Neoconservatives and the Christian right teamed up to mount sweeping attacks in the 1980s on those aspects of individualism that clashed with family values, mounting a cultural war against sexual promiscuity, drug use, feminism, homosexuality, and artists like Robert Mapplethorpe.

…

Even as conservatives warned us through the 1990s about the pathologies of single mothers on welfare and the dissipation of young people with drug habits picked up from their pot-smoking baby-boomer parents, they ignored the negative effects of intensifying competition for money and status across all sectors of society. One reason that the corporate scandals took America by surprise is that conservative diatribes about the "cultural war" directed attention away from the morally corrosive potential of extreme capitalism. Thus distracted, Americans weren't expecting the many ugly excesses that seem, in retrospect, to have been inevitable.
For example, in his 1996 bestseller, Slouching Toward Gomorrah, Robert Bork bemoaned the decline of America culture within a framework better suited to the '70s than to the '90s. Bork charged that "the enemy within is modern liberalism," that the dangerous left-wing orthodoxies of "radical egalitarianism" and "radical individualism" were bringing out the worst in Americans. The sins that concerned Bork included crime and drugs and illegitimate children, as well as "feminism, homosexuality, environmentalism, animal rights—the list could be extended almost indefinitely."

…

Founded in 1943, it initially came to distinguish itself over decades for its genuine commitment to advanced scholarship, albeit with a moderate rightward tilt. As it happened, though, that tilt was not nearly right enough for those who controlled AEI's purse strings. In the mid-1980s, AEI's main contributors threatened to cut off funding unless it turned much more conservative.
It did. These days, AEI has a $17 million budget and provides a home to some of America's most rabid right-wing ideologues, including Robert Bork, Newt Gingrich, and Charles Murray. AEI's twenty-five-member board of directors includes exactly one scholar, James Q. Wilson. The rest of the board is packed with corporate CEOs, including the chiefs of ExxonMobil, Dow Chemical, State Farm Insurance, and American Express. These extremely busy men aren't there because they enjoy a good intellectual conversation. They are on AEI's board because their companies are among the dozens that donate handsomely to AEI, funding a steady stream of highbrow studies that trash government regulation, advocate repealing taxes on corporations and the rich, propose ways to dismantle America's social safety net—and even seek to rehabilitate social Darwinist ideas about the innate superiority of some groups of human beings over others, as AEI did when it supported Charles Murray's research for his controversial book on human intelligence, The Bell Curve.

Most of today’s critics
share the Progressive assumption that government has an inherent right to control people’s choices and that individual freedom is
merely a privilege granted by the state for its own purposes; thus,
they view the decision as judicial interference with the legislature’s
rightful power to restrict freedom in the purported interests of society. As James W. Ely has concluded, these critics attack the concept
of substantive due process because of their “disagreement with particular applications of the doctrine,” and in the process they often
ignore or misrepresent the long and respectable tradition of substantive due process theory.113
Robert Bork
One of the chief critics of Lochner and its legacy is Robert Bork, who
has developed an elaborate argument that substantive due process
lies at the root of most of America’s constitutional ills.114 Bork contends that substantive due process made its first appearance in Dred
Scott v. Sandford,115 the infamous case in which the Supreme Court
declared that Congress could not forbid the spread of slavery into
the western territories and that blacks could never be citizens of the
United States.

…

And this assertion, combined with the supremacy clause, certainly does yield,
as a logical necessity, the conclusion that no state may destroy the right of property
in a slave.” Harry V. Jaffa, Crisis of the House Divided (Chicago: University of Chicago
Press, 1959), pp. 290–91.
124. Dred Scott, 60 U.S. (19 How.) at 450.
125. Graber, Dred Scott, p. 64.
126. Bork, Tempting of America, pp. 44–45.
127. Ibid., p. 124.
128. Ibid.
129. Robert Bork, Slouching towards Gomorrah (New York: HarperCollins, 1996),
p. 63 (quoting Irving Kristol).
130. Bork, Tempting of America, p. 139. In another place, Bork has claimed that “only
a legal-positivist judge can be an adherent of the Framers’ original intent.” Robert H.
Bork, “Original Intent and the Framers of the Constitution: A Disputed Question,”
book review, National Review, February 7, 1994, p. 61 (1994 WLNR 3412460).
131. James Madison, “Sovereignty,” in Writings of James Madison, ed. Gaillard
Hunt (New York: Putnam, 1900–1910), vol. 9, pp. 570–71.

…

Koller II, “The Myth of Predatory Pricing: An Empirical Study,”
Antitrust Law and Economic Review 4 (1971): 105 (“the standard theoretical analysis in
this area treats predation as a form of non-maximizing (irrational) behavior and thus
305
Notes for Pages 53–57
an unlikely occurrence in the real world”); James C. Miller III and Paul Pautler, “Predation: The Changing View in Economics and the Law,” Journal of Law and Economics
28 (1985): 495–502; and Robert H. Bork, The Antitrust Paradox: A Policy at War with
Itself (New York: Free Press, 1993), p. 154 (“predation by such techniques is very
improbable . . . [and prohibiting price-cutting] would do much more harm than
good”).
81. John S. McGee, “Predatory Price Cutting: The Standard Oil (N.J.) Case,” Journal
of Law and Economics 1 (1958): 168.
82. See, for example, Kenneth G. Elzinga, “Predatory Pricing: The Case of the Gunpowder Trust,” Journal of Law and Economics 13 (1970): 223–40.
83.

Looking closely at the “monopolies” the Sherman Act was intended to break up reveals how much perception overwhelmed reality. Standard economic theory holds that to be a monopoly, a business must restrict output in order to push up prices. Although this definition of monopoly was not well developed in 1890, some scholars believe that it was nevertheless what Senator Sherman and his colleagues had in mind in promoting antitrust legislation. Robert Bork, who taught antitrust law at Yale Law School for more than fifteen years and is a frequent critic of antitrust regulation, stated in the Journal of Law and Economics that “Sherman demonstrated more than once that he understood that higher prices were brought about by a restriction of output. . . . Sherman and his colleagues identified the phrase ‘restraint of commerce’ or ‘restraint of trade’ with ‘restriction of output.’ “8 Senator Sherman may have said this, but the facts contradict the contention that the trusts were reducing output and raising prices.

…

DiLorenzo, The Real Lincoln: A New Look at Abraham Lincoln, His Agenda, and an Unnecessary War (New York: Three Rivers Press, 2003); and Charles Adams, When in the Course of Human Events: Arguing the Case for Southern Secession (New York: Rowman & Littlefield, 2000).
5. William Letwin, Law and Economic Policy in America: The Evolution of the Sherman Antitrust Law (Chicago: University of Chicago Press, 1965), 67.
6. Robert Gray and James Peterson, Economic Development in the United States (New York: Irwin, 1965), 57.
7. Sanford D. Gordon, “Attitudes Toward Trusts Prior to the Sherman Act,” Southern Economics Journal 20 (June 1963): 158.
8. Robert Bork, “Legislative Intent and the Policy of the Sherman Act,” Journal of Law and Economics 9 (October 1966): 16.
9. Thomas J. DiLorenzo, “The Origins of Antitrust: An Interest-Group Perspective,” International Review of Law and Economics 5, no. 1 (June 1985): 73–90.
10. Congressional Record, 51st Congress, 1st Session, House, June 20, 1890, 4, 100.
11. New York Times, October 1, 1890, 2.
12. Ibid.
13.

Biden’s campaign felt derivative; he wasn’t as bad as Gary Hart (who would stand with his hand in his suit pocket in imitation of JFK), but he was consciously trying to be a generational leader. As the pundits said, the Kennedys quoted the Greeks; Biden quoted the Kennedys. To be fair, the Kennedy legacy was tough to compete with.
That same summer, Lewis Powell retired from the Supreme Court, and President Reagan nominated Judge Robert Bork to take his place. It was a polarizing choice, since many believed that, if confirmed, Bork would create a majority that might overturn a number of previous Court decisions on matters relating to personal liberty, particularly Roe v. Wade. Senator Ted Kennedy made his infamous In-Robert-Bork’s-America speech, which galvanized both Bork’s opponents and supporters.
Biden, as chairman of the Judiciary Committee, would chair the confirmation hearings, and his performance was widely expected to be like a first primary election for him. If he performed well, his name recognition and status among Democratic primary voters might skyrocket.

He is a greater admirer of Frank Knight and Aaron Director.
Director was a significant figure in his own right. Melvin Reder emphasizes Director’s role among Chicago economists, writing in 1982 that in conducting his own work on the history of economics at the University of Chicago, he was “struck by the many strong expressions of intellectual indebtedness both of Chicago economists and legal scholars (such as Edward Levi and Robert Bork) to Aaron Director.... Director appears to have exercised a great deal of influence upon the principal figures in Chicago economics from the 1930s to the present.”39 According to Coase: “Director was extremely effective as a teacher, and he had a profound influence on the views of some of his students and also on those of some of his colleagues... both in law and economics.”40 Stigler wrote in 1974 that in “forming most present day policy views of Chicago economists, Director and Friedman have been the main intellectual forces.”41
Milton and Rose’s friends at Chicago outside economics were the university’s elite, including Ed and Laura Banfield in political science, Daniel and Ruth Boorstin in history, and Edward and Kate Levi in the law school, among many others.

…

.), “The Fire of Truth: A Remembrance of Law and Economics at Chicago, 1932–1970,” Journal of Law and Economics (April 1983), is the transcript of an exceptional gathering of thirty former University of Chicago students and former and current faculty focusing on the contributions of Aaron Director and Ronald Coase to the field of law and economics. Among the participants are Milton and Rose Friedman, Stigler, Wallis, Becker, and Robert Bork, in addition to Director and Coase. There is much history and exploration of the development of ideas.
A number of obituaries were written on Director’s death in September 2004. These include Richard M. Ebeling, “Aaron Director on the Market for Goods and Ideas,” Freeman (November 2004), and Adam Bernstein, “Aaron Director Dies at 102; Helped Fuse Economics, Law,” Washington Post, September 14, 2004.

It is valuable across many business functions, ranging from designing new products and services (learning no one likes pineapple-flavored toothpaste) to building better supply chain and manufacturing models and processes to reduce costs (zip-code-level forecasting capabilities), and opening up whole new entire markets (on-demand discount offerings for last-minute hotel property cancellations).
It is increasingly difficult to “opt out” of the expansion of business operations into our lives. One can choose not to subscribe to a grocery store reward program—and accept the loss of the discounts those programs can provide. Although there is no requirement to join a social network, there can be a stigma attached to not doing so.
In 1987, Robert Bork’s nomination to the Supreme Court was hotly contested, in part by using his video rental history as evidence in support of arguments against his confirmation. His reputation as a qualified candidate for the Supreme Court was being assessed, in part, by making judgments about the movies he watched. The resulting controversy led to Federal legislation enacted by Congress in 1988. Called the Video Privacy Protection Act, the VPPA made it illegal for any videotape service provider to disclose rental history information outside the ordinary course of business and made violators liable for damages up to $2,500.

., Don’t Tread on Us: Signs of a 21st Century Political Awakening (Los Angeles: WND Books, 2010).
* Of course, 1928 was not a Depression year. But Louisiana was so poor even before the crash, and Huey Long would soon become such an archetypal Depression figure, that we include this episode as an honorary example.
* A curious echo of Mellon’s dictum about hard times forcing people to “live a more moral life” occurs in Robert Bork’s mournful meditation, Slouching Towards Gomorrah, in which he briefly considers “a deep economic depression” as one way of bringing about “moral regeneration.” The idea is immediately discarded for “lacking broad public support.” See Slouching Towards Gomorrah: Modern Liberalism and American Decline (New York: HarperCollins, 2003), p. 336. The Galbraith quote appears in The Great Crash: 1929 (Boston: Houghton Mifflin, 1955), p. 199

In each country, a particular incident will initially raise the issues at stake in dramatic fashion and drive public demand, similar to what has happened in the United States. A federal statute was passed in 1994 prohibiting state departments of motor vehicles from sharing personal information after a series of high-profile abuses of that information, including the murder of a prominent actress by a stalker. In 1988, following the leak of the late Judge Robert Bork’s video-rental information during the Supreme Court nomination process, Congress passed the Video Privacy Protection Act, criminalizing disclosure of personally identifiable rental information without customer consent.6
While all of this digital chaos will be a nuisance to democratic societies, it will not destroy the democratic system. Institutions and polities will be left intact, if slightly battered.

A new “right” became widely (and often indignantly) defended
across the American landscape. And yet, Prosserʼs four categories are far from universally accepted. Nor have we
begun to see more than a glimmer of their implications for the electronic age.
Although much of the legal activity surrounding privacy is taking place in the turbid realm of torts, there has
also been some legislation by statute. For instance, when Judge Robert H. Bork was nominated to the U.S. Supreme
Court, some journalists obtained his video rental records, presumably to learn if he had kinky tastes. Outraged by
this intrusion, Congress passed the Video Privacy Act, outlawing this narrowly specific invasion of privacy. As yet,
there is no comparable protection for books or periodicals, or even our medical histories. The Fair Credit
Reporting Act gives individuals access to their records and limits disclosure of credit files.

…

Even as we plunge into the electronic age, legal scholars keep hedging, backtracking, and
disagreeing over the constantly shifting borderline between the essential interests of the individual and the
practical needs of an urban state.
This chaos is especially noteworthy when we compare it to the way certain other rights, especially that of free
speech, are treated as quasi-religions essences and defended with rulings that are fierce in their sweeping,
uncompromising clarity. Robert Bork is among the many jurists who have called privacy a “derived” right, not a
basic one, like free speech.
What does tend to come through many recent privacy decisions is the following:
1. The “right to be let alone,” to go about our lives free from unreasonable interference by external forces,
has become somewhat accepted as a guiding principle of common law.
2. A ruling of “unreasonable interference” is more probable if the plaintiff faces actual harm or active
obstacles to exercising personal sovereignty.

In 1995 George Gilder wrote, “Bohemian values have come to prevail over bourgeois virtue in sexual morals and family roles, arts and letters, bureaucracies and universities, popular culture and public life. As a result, culture and family life are widely in chaos, cities seethe with venereal plagues, schools and colleges fall to obscurantism and propaganda, the courts are a carnival of pettifoggery.” In 1996 Robert Bork’s bestseller, Slouching Towards Gomorrah, argued that the forces of the sixties have spread cultural rot across mainstream America. In 1999 William Bennett argued, “Our culture celebrates self-gratification, the crossing of all moral barriers, and now the breaking of all social taboos.”
But if you look around upscale America, it’s not all chaos and amoralism, even among the sexual avant-gardists at the Arizona Power Exchange.

Treasury Secretary James Baker commented that “President Reagan has granted more import relief to U.S. industry than any of his predecessors in more than half a century.” Lindley Clark, Wall Street Journal, Sept. 24, 1987. In short, not a limited state, but a more powerful one, which serves the wealthy and privileged.
3. Erwin Chemerinsky, professor of constitutional law at the University of Southern California, speaking for a group of lawyers opposing the nomination of Judge Robert Bork, reflecting the views of civil libertarians rather generally; Bernard Weinraub, NYT, Aug. 29, 1987. A principle that emerges with still greater clarity is that where there’s business versus anyone, business wins. On Bork’s muddled thinking and “fake” scholarship, see Ronald Dworkin, New York Review, Aug. 13, 1987; Arthur Schlesinger, WSJ, Sept. 24, 1987. Perhaps the most remarkable feature of his hearings was his bland dismissal of his academic work, as not to be taken seriously, an interesting attitude towards the profession, and towards integrity.
4.

The key was earnest profession of a good no one could dispute: making America the best-connected nation on earth by bringing the wonder of the telephone into every American home. Appropriating the most appealing rhetoric of the Independents, and arguing persuasively that the Bell system could get the job done more effectively, Vail turned his monopoly into a patriotic cause.
There is a long-running debate in the field of antitrust theory as to what should matter when judging the conduct of a monopolist. Robert Bork, the onetime federal judge and notoriously rejected Supreme Court candidate, is famous for arguing that the corporation’s intent, whether malign or beneficent, should be irrelevant.24 Yet as Bork himself knew, for most of the history of antitrust, attitude is everything, even if market efficiencies are supposed to matter most.
This was something Vail seemed to understand intuitively: that antitrust, perhaps all law, is ultimately pliable by perceptions of right and wrong, good and evil.

…

Danielian himself was drawing on a three-volume FCC document entitled Telephone Investigation: Special Investigation Docket, Report on Control of Telephone Communication, Control of Independent Companies (1936–37).
22. The settlement is discussed in Mueller, Universal Service, 130.
23. The government reaction to the agreement is covered in Brooks, Telephone, 136.
24. Bork’s opinion on the irrelevance of corporate intent can be read in Robert H. Bork, The Antitrust Paradox (New York: Basic Books, 1978), 38–39.
25. This quote is in Theodore Vail, “Some Observations on Modern Tendencies,” Educational Review vol. 51, February 1916, 109, 129.
26. Mueller, Universal Service, 146.
CHAPTER 4: THE TIME IS NOT RIPE FOR FEATURE FILMS
1. For a more detailed account of this initial meeting (and an excellent history of the rise of the American film industry), see James Forsher, The Community of Cinema: How Cinema and Spectacle Transformed the American Downtown (Westport, CT: Praeger Publishers, 2003), 30–32.
2.

In 1987, what had once been the dramatic sideshows of politics became the main event: the candidate and his humiliated wife under the hot lights, the nominee at the televised hearing table talking through and around and against his own past, the ideologues and interest groups on each side of every question large and small mobilizing for total war, the daily excavation of old and recent sins in the life of a politician, the momentum building to a crescendo, the reporters a pack of wild dogs outracing one another on the blood scent of some powerful but wounded quarry. In 1987, there was Gary Hart, there was Robert Bork, and there was Joe Biden—the last two happening at the same moment.
Inside the campaign, the two weeks after the Kinnock story were a frantic nightmare, every day a new shock. But in retrospect, the dénouement looked as mechanical and inevitable as an ancient sacrificial rite at the center of a tribal culture. The candidate vows to carry on and tries to ignore the baying of the hounds. The media keep drawing more blood.

…

“I’m angry with myself for having been put in this position—for having put myself in this position,” Biden announced to the firing squad of cameras. “And, lest I say something that might be somewhat sarcastic, I should go to the Bork hearings.” With that, Biden went to the Senate Caucus Room on the third floor and took his seat as chairman of the Judiciary Committee hearings that would lead to the defeat of Judge Robert Bork’s nomination to the Supreme Court and begin Biden’s political rehabilitation.
Connaughton was shell-shocked. His hero had been exposed as a phony, reduced from White House material to national joke in two weeks. “His strength, he claimed, was his ability to speak and move people,” Connaughton said. “Then, when it appeared he was borrowing other people’s words, that completely undermined it.” Now Connaughton didn’t know what to do: his life was suddenly directionless.

They need to know what is being sold and, so they think, to whom.
People have different instinctual reactions to the existence of these databases. Some welcome
them and see the efficiency as a net gain for society (Brin 1998). Others fret about how the
information might be used for other purposes. We have laws protecting the movie rental
records of people because the data became a focal point during the Senate confirmation
hearings of Robert Bork (Etzioni 1999). Times and mores change, and no one knows what will
be made of this information in the future. Cigarette smoking was once widespread and an
accepted way to push the pause button on life. Now, companies fire people for smoking to save
medical costs. What will the society of the future do with your current purchase records?
A store selling clothes might try to placate customer worries by announcing a privacy policy
and pledging to keep it locked up, a strategy that often works until some breach happens.

While it was originally intended to apply to a broad range of public and private databases to parallel the HEW report, the Act was amended before passage to apply only to government agencies’ records.4 Congress never enacted a comparable comprehensive regulatory scheme for private databases. Instead, private databases are regulated only in narrow areas of sensitivity such as credit reports (addressed by a complex scheme passed in 1970 affecting the handful of credit reporting agencies)5 and video rental data,6 which has been protected since Supreme Court nominee Robert Bork’s video rental history was leaked to a newspaper during his confirmation process in 1987.7
The HEW report expresses a basic template for dealing with the informational privacy problem: first, a sensitivity is identified at some stage of the information production process—the gathering, storage, or dissemination of one’s private information—and then a legal regime is proposed to restrict these activities to legitimate ends.

According to students who were there, Levi would spend the first four days of the week explaining existing antitrust law, after which Director devoted the fifth to explaining why none of it made any economic sense. At first Levi bridled, but eventually he was won over by Director’s relentless economic logic.
So were the students. “A lot of us who took the antitrust course or the economics course underwent what can only be called a religious conversion,” said Robert Bork, who studied law at Chicago in the early 1950s. “It changed our view of the entire world.”18 Many of Director’s students went on to make his economics teachings the focal point of their careers. An academic movement had been launched.
Director’s main message was that things happened in the business world for a reason, and that when one looked hard enough one would usually find Adam Smith’s invisible hand at work—even at General Motors.

And that banks that used it were really just banking on being able to rip off poor people even more than they could if they charged them for their checks."
Eisman asked, "Are any regulators interested in this?"
"No," said Sandler.
"That's when I decided the system was really, 'Fuck the poor.'"
In his youth, Eisman had been a strident Republican. He joined right-wing organizations, voted for Reagan twice, and even loved Robert Bork. It wasn't until he got to Wall Street, oddly, that his politics drifted left. He attributed his first baby steps back to the middle of the political spectrum to the end of the cold war. "I wasn't as right-wing because there wasn't as much to be right-wing about." By the time Household's CEO, Bill Aldinger, collected his $100 million, Eisman was on his way to becoming the financial market's first socialist.

See also Methaven's “ultraminimal state” and its Facestate project: Andrea Hyde, “Metahaven's Facestate,” Walker Art Center, December 13, 2011, http://www.walkerart.org/magazine/2011/metahavens-facestate.
41. The confusion this sows is readily apparent in both attempts to curtail Google under the rubric of a trust “monopoly” and in the awkward rationales for why Google is actually not a monopoly. See judicial “originalist” Robert Bork's back-bending “What Does the Chicago School Teach About Internet Search and the Antitrust Treatment of Google,” Robert H. Bork and J. Gregory Sidak, Journal of Competition Law & Economics 8 (2012): 663–700.
42. In a way, geopolitical reality is only catching up with the anticipations of the science fiction that has already explored the proliferation and institutionalization of data havens and data infrastructures, “community clouds,” cloud-based microreligions and macrostates, and others.

Under Turner, it became an enforcement office.
Underlying all of this focus on pot was a surge of cultural conservatism into positions of power in the new administration. The late 1960s and early 1970s had seen the emergence of a movement of conservative intellectuals. Periodicals like Commentary, The Public Interest, and occasionally National Review were featuring think pieces from people like Robert Bork, Ernest van den Haag, James Q. Wilson, and James Burnham. Where someone like George Wallace openly appealed to base prejudices, and the Moral Majority might openly cite the Bible as an authority when discussing public policy, the right’s emerging tweed caucus intellectualized the culture wars. They made essentially the same points that Nixon political strategists had made among themselves in memos and behind closed doors, only with more erudition, and more for public consumption.

Nash (1945– ), American historian, authority on Herbert Hoover, and author of The Conservative Intellectual Movement in America since 1945 (Basic Books, New York, 1976).
18 Nash, Conservative Intellectual Movement in America, p. 26.
19 George Joseph Stigler (1911–91) who, after researching for the Manhattan Project, became a leading member of the University of Chicago School of Economics and protégé of Frank Knight, who won a Nobel Prize for economics in 1982.
20 John Jewkes (1902–88), professor of economic organization at Merton College, Oxford.
21 Sir Karl Raimund Popper (1902–94), former Marxist Viennese-born British scientific philosopher and advocate of the hypercritical liberal democratic tradition that forms the “open society.”
22 Dame (Cicely) Veronica “C. V.” Wedgwood (1910–97), English historian and biographer of leading figures of the sixteenth and seventeenth centuries, particularly the English Civil War and the Thirty Years’ War.
23 Aaron Director (1901–2004), former leftist radical whose teaching at the University of Chicago Law School influenced leading right-leaning American justices, including Robert Bork, Richard Posner, Justice Antonin Scalia, and Chief Justice William Rehnquist.
24 Milton Friedman and Rose D. Friedman, Two Lucky People: Memoirs (University of Chicago Press, Chicago, 1998), p. 158.
25 Ibid.
26 Ibid., p. 159. After 1957, when his children were old enough to be left alone in the United States, Milton Friedman, often accompanied by his wife, Rose, made the annual Mont Pelerin meeting his summer vacation.

He was among a handful of senators who voted against the bill, a sweeping piece of legislation intended to address the intractable legacy of racial discrimination in the South. Goldwater’s vote was based on principles he had held for years. A firm supporter of state’s rights, he was alarmed at the expansive powers granted the federal government under the act. Following the analysis of his friends William Rehnquist and Robert Bork, he also believed the act was unconstitutional because it infringed on private property rights. In the scrum of electoral politics such distinctions were academic. Goldwater’s vote went down as a vote for segregation.
Rand understood his action differently because she shared his individualistic perspective on rights and his belief that private property was sacrosanct. Unlike Goldwater, Rand was unimpressed with the doctrine of state’s rights, which “pertains to the division of power between local and national authorities. . . .

America Right or Wrong: An Anatomy of American Nationalism
by
Anatol Lieven

Richard Deveson (New York: Arnold, 1995), pp. 166ff; David
Blackbourn, The Long 19th Century: A History of Germany 1780-1918 (Oxford: Oxford University Press, 1997), introduction; Klaus Epstein, The Genesis of German
Conservatism (Princeton, NJ: Princeton University Press, 1966).
Sean Hannity, "The Battle over Competing Visions of the Family and Family Values,"
speech at United Families International Conference, November 21-22, 2003, at
www.unitedfamilies.org.
See also Robert Bork, Slouching Towards Gomorrah: Modern Liberalism and American Decline (New York: Regan Books, 1997); D'Souza, What's So Great About America,
also raises the question of whether "an open society, where such criticisms are permitted and even encouraged, has the fortitude and will to resist external assault."
228
N O T E S TO P A G E S 28-33
45. Richard Rorty, Achieving Our Country: Leftist Thought in Twentieth Century America
(Cambridge, MA: Harvard University Press, 1998), p. 35.
46.

As a member of the law school faculty, Director helped found the Chicago School of thought on antitrust law, which claimed the American application of antitrust laws to break up large companies was often misguided and restrained economic growth, and these ideas became the foundation of Ronald Reagan’s weakened antitrust enforcement in the 1980s. Director’s students at the Chicago law school included future outspoken federal judges Robert Bork and Richard Posner, whose conservative views later had wide influence.
Hayek was ultimately given a position on the university’s Committee for Social Thought, not in its economics department. It is possible that the economics faculty, fully understanding how influential he was in redirecting their theoretical work, did not want to acknowledge him.
But the more extremist and overtly political turn the Chicago economics department had taken under Director and Friedman’s influence disturbed the old guard, whom Friedman nevertheless ever after cited as his admired mentors.

which bluntly questioned “whether we have reached or are reaching the point where conscientious citizens can no longer give moral assent to the existing regime.”19 A series of essays raised the prospect of a major confrontation between the church and the “regime,” at times seeming to predict a civil-war scenario or Christian insurrection against the government, exploring possibilities “ranging from noncompliance to resistance to civil disobedience to morally justified revolution.”20 Erik Prince’s close friend, political collaborator, and beneficiary Chuck Colson authored one of the five major essays of the issue, as did extremist Judge Robert Bork, whom Reagan had tried unsuccessfully to appoint to the Supreme Court in 1987. “Americans are not accustomed to speaking of a regime. Regimes are what other nations have,” asserted the symposium’s unsigned introduction. “This symposium asks whether we may be deceiving ourselves and, if we are, what are the implications of that self-deception. By the word ‘regime’ we mean the actual, existing system of government.

When it comes to the intelligent designer, Behe suddenly jettisons all scientific scruples and does not question where the designer came from or how the designer works. And he ignores the overwhelming evidence that the process of evolution, far from being intelligent and purposeful, is wasteful and cruel.
Nonetheless, Intelligent Design has been embraced by leading neoconservatives, including Irving Kristol, Robert Bork, Roger Kimball, and Gertrude Himmelfarb. Other conservative intellectuals have also sympathized with creationism for moral reasons, such as the law professor Philip Johnson, the writer William F. Buckley, the columnist Tom Bethell, and, disconcertingly, the bioethicist Leon Kass—chair of George W. Bush’s new Council on Bioethics and thus a shaper of the nation’s policies on biology and medicine.33 A story entitled “The Deniable Darwin” appeared, astonishingly, on the cover of Commentary, which means that a magazine that was once a leading forum for secular Jewish intellectuals is now more skeptical of evolution than is the Pope!

“I know it sounds not normal,” says Susie. “Other people have a lot of kids and they have animosity. Ted just didn’t. He’s logical … he’s really easy to get along with, he’s really funny, really great with kids, very generous, very giving in all ways. It’s not odd to us.”
In his interview with the Times, Field was in full roar, comparing the religious right in America to Nazis, and defending his campaign against Robert Bork, a Ronald Reagan appointee to the Supreme Court, calling him “the most dangerous kind of monster.” That kind of talk and the kind of music Interscope promoted had put Field in the sights of then vice president Dan Quayle, who met with the daughter of a Texas state trooper who’d been shot by a fleeing suspect who was driving a stolen car and listening to Tupac Shakur’s Interscope album, 2pacalypse Now.

Specter opposed Reagan’s spending cuts on Social Security, unemployment benefits, child health care, food stamps, and programs for the poor, and he fought against a ban on abortions and a constitutional amendment legalizing school prayer. National Review put Specter on its cover in 1983 as the “Worst GOP Senator.”
But what most infuriated the hard-core Right was his vote in 1987 in the Senate Judiciary Committee against Reagan’s nomination of Robert Bork to the Supreme Court. Specter’s no vote helped defeat Bork. The New Right smoldered.
In 2004, the hard-core Right decided to purge Specter by challenging him in Pennsylvania’s Republican primary and intimidating other Senate RINO moderates. “If we beat Specter, we won’t have any trouble with wayward Republicans …,” asserted Stephen Moore, president of the Club for Growth, a militantly anti-tax, anti-government right-wing group.

Company annual and quarterly reports; GDP data from Bureau of Economic Analysis, National Income and Product Accounts, Table 1.1.5, available at http://www.bea.gov/national/nipaweb/Index.asp. Figures are as of September 2009.
82. “Officials Fear Systemic Risks of Bailout,” Marketplace, October 21, 2009, available at http://marketplace.publicradio.org/display/web/2009/10/21/pm-systemtic-risk/.
83. The origins of the Sherman Act of 1890 are unclear and remain controversial. See Robert H. Bork, “Legislative Intent and the Policy of the Sherman Act,” Journal of Law and Economics 9 (1966): 7–48; and George J. Stigler, “The Origins of the Sherman Act,” Journal of Legal Studies 14 (1985): 1–12. Thomas Hazlett argues it was a political compromise designed to provide Republican legislators “with a cosmetic defense on the trust question, in anticipation of the upcoming consumer-to-industry transfers in the McKinley Tariff,” and “it was not thought to do more than codify and federalize the common law.”

Dreyfuss, ed. (Ox-ford: Oxford University Press, 2001), 131-32.
22
“Chicago school” analysts argued that a monopolist possesses a fixed amount of market power and therefore can extract only a fixed amount of monopoly profit from consumers, whether from one market or several. On this basis, they concluded that leverage of monopoly power from one market into another is impossible. See, e.g., Robert H. Bork, The Antitrust Paradox: A Policy at War with Itself (New York: Basic Books, 1978); Richard A. Posner, Antitrust Law: An Economic Perspective (Chicago: University of Chicago Press, 1976). More recent economic analyses have demonstrated several mechanisms by which market power in one market can be used to harm competition in another market. As Steven Salop and Craig Romaine put it:
Post-Chicago economic analysis has suggested that there are a number of limiting assumptions required for this single monopoly profit theory to apply.

The only three Duke lacrosse players on the 2006 team who were not part of any lawsuit were Matt Danowski, the son of the Duke lacrosse coach; Kevin Mayer, who had been “passed out” at the party, according to Evans, McFadyen, and others; and Matt Zash, one of the three cocaptains who had lived at 610 North Buchanan and told his friends that he “doesn’t split dark wood.” (Nifong observed that Zash’s lack of involvement with the lawsuits “is interesting if it shows nothing other than restraint on his part.”)
Incredibly, their attorneys and publicist—Bob Bork Jr., the son of Robert Bork, the unsuccessful Supreme Court nominee—commandeered the National Press Club in Washington, one block from the White House, to announce the lawsuit. At the same time, they also launched a website to accompany the filing of the lawsuit. “This is kind of a media center,” Bork said, “and Durham isn’t. Sorry.” The players’ attorney, Chuck Cooper, described the people who came out against the lacrosse team in the days after March 13 as an “angry mob” and said the players were “reviled almost daily in the local and national press.”